Effectiveness and Binding Nature of Declarations (Notices, Requests or Other Communications) under Part II and Part III of the CISG

The Convention on the International Sale of Goods (CISG) [1] contains many references to contractual declarations between parties. Part II of the Convention (Formation of the Contract) deals with declarations of offer and acceptance. A variety of other declarations are dealt with in Part III of the Convention (Sale of Goods).

This commentary discusses the legal effectiveness and the irrevocability of such declarations. For the purposes of this paper, effectiveness is defined as "operative, active, and in effect;" irrevocable is defined as "incapable of being recalled, undone, altered, or revoked."

The legal effectiveness and revocability of Part II declarations are expressly regulated, unlike the declarations covered in Part III of the CISG. This commentary focuses primarily upon the latter subject.

I. The Legal Effectiveness and Binding Nature of a Declaration

A. Legal Effectiveness

1. The Offer and Acceptance Rule

In Part II of the CISG, the legal effectiveness of an offer under Article 15(1) and the legal effectiveness of an acceptance under Article 18(2) are tied to the moment of receipt as defined in Article 24.[2] The same rule applies to the withdrawal of an offer (Article 15(2)), the rejection of an offer (Article 17), a declaration fixing a period of time for acceptance of an offer (Article 20(1)), and the withdrawal of an acceptance (Article 22).[3]

2. The "Receipt" Rule

Part III of the CISG contains five articles which tie the legal effectiveness of a contract to the receipt of a buyer's or seller's notice.[4] Under Article 47(2), a seller's notice that he will not perform within the period fixed by the buyer becomes effective upon receipt of this notice. Similarly under Article 63(2), the legal effectiveness of a buyer's notice that he will not perform within the period fixed by the seller also becomes effective upon such receipt.[5] The same rule applies to (1) the seller's request for clarification or notice that the buyer will perform within a specified timed;[6] (2) the seller's request that the buyer supply missing specifications and the seller's notice to the buyer that he will supply such specifications if buyer fails to do so;[7] and (3) the notice of an impediment and its effect upon a party's ability to perform.[8]

3. The Article 27 Rule

The legal effectiveness of other Part III declarations is determined by the rule set forth in Article 27.[9] For example, Article 26 states that "[a] declaration of avoidance of the contract is effective only if made by notice to the other party,"[10] but Article 27 provides that these and other Part III declarations need not be received to be effective.[11] Article 27 states that if the declaration "is given or made by a party in accordance with [Part III] and by means appropriate in the circumstances, a delay or error in the transmission of a communication or its failure to arrive does not deprive that party of the right to rely on the communication."[12]

B. Binding Nature

Part II provides an express rule applicable to offer declarations. This rule distinguishes between the legal effectiveness of such declarations and their binding nature. Part III, however, draws this distinction only with respect to specifications. A key issue addressed by this commentary is whether a similar distinction should also be made for other Part III declarations, based on general principles of the CISG.

In the drafting of Part II, the revocability of an offer was sharply debated and was finally resolved by the compromise embodied in Article 16. This article separates the legal effectiveness and the binding nature of the declaration. Although an offer is effective upon receipt, Article 16(1) permits the declaring party to revoke his declaration at any time before the dispatch of the other party's acceptance.[13]

Article 65(2) provides that the specification of the seller, which became effective upon receipt, becomes binding for the seller only if the buyer does not himself specify within the time fixed by the seller.[14] Elsewhere, Part III contains no provisions which explicitly distinguish between the legal effectiveness and irrevocability of a declaration.

II. Analysis of Part III Provisions

A. Declarations under "Receipt" Articles

As with Part II declarations on offer and acceptance, the legal effectiveness of Part III declarations regulated under Articles 47(2), 48(4), 63(2), 65(1), 65(2), and 79(4) is tied to the moment of receipt.[15] One way to treat these declarations is to rule that the declaring party is bound from the moment that his declaration is received, but also to allow him to withdraw or change his declaration up until this moment.[16] Under such a rule, effectiveness and irrevocability could be regarded as identical.

But is such a rule warranted? The situations addressed by Articles 47, 48, 63, 65, and 79 suggest that it is not, although Article 65 is the only Part III provision containing an express rule on this subject. In order to comprehend fully the revocability issues associated with declarations, one must examine these five articles.

1. Articles 47 and 63 (Buyer's Notice Fixing Additional Final Period for Performance and Seller's Notice Fixing Additional Final Period for Performance)[17]

Why should the seller not be permitted to withdraw his notice under Article 47(2) as long as the buyer has not yet raised a remedy? One can make the same argument with respect to the buyer's notice under Article 63(2). A revocation of this notice can only improve the legal situation of the addressee, the seller.

Notice or request of the seller under Article 48(2) or (3) limits the buyer to the time span set by these declarations. Why should the seller not be allowed to lift this limitation by withdrawing his notice or request?

A seller's request that the buyer specify the form, measurement, or other features of the goods, as well as a seller's notice that he made these specifications himself under Article 65(1) and (2), imposes pressure on the buyer. There is no reason why the seller should not be able to withdraw this pressure unilaterally. Consequently, Article 65(2) provides that the specifications declared by the seller, which became effective upon receipt, become binding for the seller only if the buyer does not himself declare different specifications within the time fixed by the seller. The time at which this communication becomes effective and the time at which it becomes binding upon the communicating party is clearly distinguished under this provision of the Convention.[20]

The revocation of a notice of inability to perform under Article 79(4) impairs the situation of the declaring party, but does not affect the position of the addressee. As in the situations discussed above, there is no reason to prevent the noticing party from revoking this notice by assuming that he is bound by his mere declaration upon receipt.

A number of scholars interpret the rule in Article 27 as an acceptance of the dispatch theory.[23] This can mean that Article 27 not only provides that "a delay or error in the transmission of the communication or its failure to arrive does not deprive [the declaring] party of the right to rely on the communication,"[24] but also explains this result by assuming that the declaration becomes effective on dispatch. Some writers have expressed a contrary point of view by taking the position that effectiveness occurs only upon receipt.[25] In the event of loss of the communication, effectiveness occurs at the hypothetical moment of receipt under normal circumstances. Neumayer emphasizes that the practical importance of this receipt concept is the ability of the declaring party to withdraw or change his declaration at any time prior to the time of receipt. His comment is of special significance if the effectiveness and irrevocability of Article 27 declarations are deemed to coincide.

An issue of still greater practical importance is whether a declaration governed by Article 27 is in fact to be regarded as irrevocable at the time it takes legal effect. Part III declarations governed by Article 27 will be examined in a variety of contexts.

1. The Avoidance Context: Articles 26 and 27

In a CISG case in which the author of this commentary participated as an expert witness on uniform sales law, the buyer declared avoidance of the contract, claiming that the machines he purchased produced an unacceptable amount of waste because of a malfunctioning electronic control system. The seller denied any non-conformity and rejected the buyer's declaration of avoidance (and his demand for repayment of the purchase price). More than three years of litigation followed. Taking into account the uncertainties of the lawsuit, the buyer mitigated his losses by repairing the machines himself.

During the litigation, the court determined that the machines had not conformed to the contract when they were delivered, and that this non-conformity amounted to a fundamental breach. The court also realized that the seller was in serious financial straits and would not be able to refund the purchase price or pay the damages caused by the breach of contract. In order to avoid having to return the machines and account to the seller for the benefits the buyer had derived from them in the meantime, the buyer revoked his declaration of avoidances.[26]The buyer instead declared a reduction of the purchase price under Article 50, claiming restitution of only a part of the purchase price and additional damages. He was well aware that even this reduced demand would not be satisfied by the seller, but cut his overall losses by keeping the machines which were now functioning more or less properly. The seller objected to the revocation of the declaration of avoidance. He agreed with a termination of the contract and asked for the machines to be returned to him.

This case illustrates some of the practical reasons supporting a rule that permits the revocation of a declaration governed by Article 27 after the declaration has been dispatched. Although not relevant to this buyer, the theory that such declarations should at least remain ineffective prior to receipt makes sense. A declaration which avoids the contract or reduces the price should not occur before the other party has a chance to know the declaration and the change in the legal situation brought about thereby. Such a declaration is characterized as a "unilaterally shaping declaration" (einseitige Gestaltungserklärung).

2. Other Contexts

a. Notice of a consignment specifying the goods

The consignment notice under Article 32 has consequences that particularly affect the identification necessary for passing a risk of loss under Article 67(2). A seller could be tempted to change his dispatched notice, identifying goods to the contract which were already lost. This behavior, however, would not help the seller because the new notice would govern the risk allocation and would come too late if the goods had perished in the meantime. That a seller would revoke such a notice of identification and thereby undo the passing of risk is only theoretically possible and not very likely. Since such a revocation would only be advantageous to the buyer, there appears to be no reason why the seller should be prevented from doing so.[27]

b. Notice to the buyer providing him with all available information necessary to enable the buyer to effect insurance

The insurance-related information regulated by Article 32(3), which the seller must provide, could not possibly raise questions of effectiveness and irrevocability. A violation of the duty to inform under Article 32(3) might give rise to damage claims.[28] If the seller has sent correct information, he has performed his obligation; delay, errors in transmission, or loss of the information are not his responsibility under Article 27. If, however, he has dispatched false information and wants to replace it with correct data, this action should be allowed even after dispatch of the initial information. Whether this would be sufficient to avoid the seller's liability for damages incurred by the buyer depends upon the circumstances, i.e., whether the buyer has already acted upon the incomplete or incorrect information.

c. Notice of intent to avoid prior to the date for performance

The same rule applies to the notice of intended avoidance under Article 72(2). Only dispatch is required, but this does not preclude later withdrawal or revocation. The other party probably could not be disadvantaged by such a revocation, even if he had acted upon the notice and was prepared to provide adequate assurance of his performance. Because an anticipated breach of contract was about to occur, the assurance not to breach could hardly be regarded as "damages" of the obligated party.

d. Notice of intent to sell preserved goods: Article 88(1)

There is no conceivable reason why this notice cannot be revoked or modified after dispatch. Here, too, a limit on the right to revoke or modify can only be derived from the need to protect the recipient in the event that he has acted in reliance upon the first notice.

This cursory check of declarations regulated by Article 27 shows that there are no convincing arguments against either a separation of effectiveness from irrevocability or the assumption that such declarations are effective upon dispatch.[29] If one separates effectiveness from revocability, the function of the concept of effectiveness becomes focused almost exclusively on the risks of delay, error, and loss, of which the sender is relieved upon dispatch. However, the dominium of the declaring or communicating party over his declaration must be limited where the addressee is in need of protection.

3. Limitations over Dominion of the Declaring Party

The question remains, where exactly this limit has to be drawn, and whether it has to be the same for all declarations, or has to be set for each declaration individually. The ideal response to these questions requires an analysis of each declaration falling under Article 27: whether and for how long a declaration can be withdrawn or revoked, and when protection of the addressee must commence and withdrawal or revocation be denied.

Such an analysis, "dissecting" every declaration under the Convention, requires a much lengthier contribution than is presented in this commentary. The following examples are only illustrative.

a. Avoidance declarations

The declaration of avoidance, by which the buyer or seller changes the contract into a restitutionary relationship under Articles 49 or 64, is probably the most important example for the issue dealt with here. The case reported above, which was settled out of court, is a good illustration. It is obvious that a declaring party may have good reasons to change his mind after dispatch of his avoidance communication. He may have good reasons to want to keep the contract alive and obtain damages or, in the case of non-conforming, a price reduction.

b. Remedies for non-conformity

Huber believes that the buyer should be allowed to revoke or alter his declaration of avoidance or price reduction up until the seller has declared his agreement with a particular demand.[30] The same applies to a declaration of reduction of price by the buyer under Article 50. He may have declared price reduction a bit hastily and discovered only after dispatch of his communication that his interests would be better served by a demand for delivery of substitute goods or repair under Article 46(2), a claim that Article 46(1) would bar where there is an effective price reduction. Do the interests of the seller require that the buyer be bound instantly by these demands and, if not, for how long may he have a ius variandi, the right to change? It is the opinion of this author that the seller is worthy of protection only if he has received the communication of the buyer and has in some way acted in reliance upon it. If he rejects the buyer's demands by, for example, denying any non-conformity, he should not be regarded as worthy of protection against a change of the buyer's demands.[31]

c. Buyer's specification of the form, measurement, or other features of the goods

The specification of goods which the buyer has to make under Article 65(1) identifies the obligation of the seller and the content of the contract. As long as the seller has no knowledge of the buyer's notice of specification, there would seem to be no need to protect the seller against a revocation or alteration of a specification dispatched by the buyer.[32]

d. Notices of non-conformity

Notices of non-conformity under Articles 39 or 43 must "specify the nature of the lack of conformity," a requirement that often causes litigation over the validity of a notice. Should the buyer be bound by a notice which is incomplete and without effect because of a lack of specification of the defects, or may he "repair" his notice after dispatch? The question is of little practical importance because the buyer has to repair his notice at least within the reasonable period of time under Article 39(1). If he does so, his amendment can always qualify as a new notice. Although it is difficult to imagine a practical need for a withdrawal or revocation of a notice of non-conformity, if the buyer nevertheless wishes to withdraw such a notice, this action can only improve the legal situation of the seller; therefore, there is again no need to protect him against such withdrawal.

e. Another argument in favor of revocability after dispatch of declarations governed by Article 27

Another argument in favor of the revocability of declarations after dispatch takes into account the risk that the parties and courts might instead resort to national rules of avoidance for error or mistake, thereby opening a kind of safety valve for parties who have sent a declaration hastily and without due consideration, only to discover later that they have taken the wrong path. Such a liberal recourse to internal provisions on error or mistake would, however, endanger the uniformity in the treatment of these declarations in international sales affairs. A wiser course of action would entail using a CISG principle to close the gap that exists with regard to the effectiveness and revocability of declarations under Article 27, thereby avoiding recourse to internal law by way of conflict of law rules pursuant to Article 7(2).

III. Primary Issues Analyzed

Are declarations governed by Article 27 effective and irrevocable upon dispatch or upon receipt? Or can they be revoked even after becoming effective? If so, for how long a period?

The first question is whether effectiveness and irrevocability should occur at the same moment, a dogma which, as reported above, has led certain commentators to advocate that declarations governed by Article 27 become effective only upon receipt, and not merely on dispatch. However, the CISG does not contain any principle upon which such a dogma could be founded. On the contrary, Articles 16(1) and 65(2) demonstrate that effectiveness and irrevocability can occur at different times.

The real issue is whether the addressee or third parties have to be protected against a revocation of a declaration. In other words, the ability of the declaring party to revoke or alter a declaration because of a change of mind or, more often, a change of circumstances, has to be balanced against the protection of the interests of the addressee and third parties. The principle of receipt is only a rough solution, which protects the addressee against withdrawal or revocation only from the moment of reception, but allows revocation in certain cases so long as the addressee has not yet acted in reliance on the binding effect of the declaration for an offer which does not state that it is irrevocable,[33] or for providing a missing specifications.[34]

The first lesson to be learned from these separations of effectiveness and irrevocability is that the CISG does not insist on a rather mechanical combination of effectiveness and irrevocability, but instead limits revocability based on certain interests of the addressee and the worthiness of protection of these interests. The second lesson that can be derived from this observation is that even after receipt of a declaration, the recipient must not necessarily be in such need of protection that receipt of the declaration is the last point in time at which the declaration can be withdrawn.

Applying these observations concerning Article 16(2) and 65(2) to all declarations under Article 27, one concludes that such declarations can become effective on dispatch without prejudicing the more practical issue of their revocability.

A. Solutions

For the moment of irrevocability of declarations (notices, requests or other communications) under Article 27, the following general solutions are imaginable:

1. Solution One

One could follow the cited commentator's opinion that the conflict between the declaring party's desire to be master of his declaration as long as possible and the need to protect the addressee should be resolved and encoded in the concept of reception. This solution is simple and clear. It applies the receipt theory to the declarations, communications, and notices encompassed by Article 27. However, this solution would be contrary to the rules in Article 16(2) and Article 65(2), in which the Convention itself disregards "reception" as an apt criterion for absolute irrevocability and respective binding of the declaring party. Such a solution would also be contrary to the intention of the drafters of the CISG.

2. Solution Two

One could in the alternative consider, at least for particular declarations, the solution proposed by Huber, regarding the declaration of price reduction, that the addressee has to be protected against revocation and change of such a declaration only after he has declared his agreement. This solution has certain practical disadvantages in that it would require that the addressee always answer to such a declaration positively. Lawyers and courts likely would try to find implied answers in the seller's conduct in order to shorten the period of time during which the fate of the declaration is uncertain.

3. Solution Three

The final solution is comparable to the factual situation on which their revocability of an offer is based under Article 16(2)(b). Irrevocability depends upon the behavior of the addressee who acts in reliance on the declaration.

In evaluating these proposed solutions, one must take into account the need to settle this question "in conformity with the general principles on which [the Convention] is based."[35] In my opinion, this consideration excludes solution (2), attractive as it might be for certain scholars. With respect to solution (1), one could refer to the principle of receipt, on which Part II is based, or the principle of estoppel -- the inhibition of contradictory behavior (venire contra factum proprium).

The principle of receipt, in the opinion of this author, cannot be utilized because the drafters of the Convention expressly declined to encode this principle in Article 27. Therefore, solution (3) remains as the only viable alternative. Revocability must depend on the need to protect the addressee of a declaration and also to draw the line differently for different declarations, communications and notices. Under Article 16(2)(b), such declarations would become irrevocable only when the addressee has acted in reliance.[36] Because this solution is open to divergent opinions and decisions, it may be a concern to those who cherish certainty of outcome in legal disputes.

B. Guidelines

Guidelines can make the necessary evaluation of conflicting interests and the solution more concrete and foreseeable. Such guidelines can take into account, for example, if the addressee has answered to a declaration. If he has agreed to the demand of the sender, then the declaring party can no longer revoke, amend, or modify. Proof that the recipient, despite his consent, did not need the protection against irrevocability and would not be harmed by revocation, amendment, or modification would be an inadmissible probatio diabolica.

On the other hand, there are no reasons opposing revocation, amendment, or modification if the addressee denies that their prerequisites and objectives exist. If the seller denies the existence of defects upon notice of non-conformity or a declaration of price reduction or a request for repair, he does not need protection, and his behavior would be contradictory if he later tried to hold the declaring party to his first declaration. This is true even after receipt and knowledge of the declaration.

In other cases, however, if the recipient had knowledge or the possibility of knowledge, and neither objected nor agreed to the declaration, there is a presumption that he relied on the declaration and behaved accordingly. Receipt of a declaration should create the presumption that the addressee relied upon the declaration. The declaring party should be bound to his declaration, unless he can prove that the recipient has not yet relied upon the declaration and its contents. Knowledge or the possibility of knowledge, however, could be present regardless of reception and thereby create this presumption, so that this solution could not be qualified (or disqualified) as a modification of the theory of reception. As long as there is neither knowledge nor the possibility of knowledge on the part of the addressee and no presumption, the declaring party should be allowed to revoke, amend, or modify his declaration.

Conclusion

These are only guidelines for the application of a principle derived from Article 16(2)(b) and Article 65(2) to fill the gap left in the Convention regarding the revocability of declarations, communications, and notices that fall under Article 27. As with all solutions based only on principles, they cannot be phrased as hard and fast rules; they should take shape only in the context of particular features of a certain declaration and the circumstances of a given case. The author of this commentary, therefore, would regard these remarks as having achieved their goals if others took up the questions raised and offered convincing and specific solutions.

FOOTNOTES

* Dr. iur. 1964 (U. of Freiburg, Germany); M.C.L. 1965 (U. of Chicago); Professor of Law, 1971 (U. of Heidelberg); Professor of Private, International, and Foreign Law and Director, Institute of Foreign and Comparative Law, U. of Freiburg, since 1977.

The author wishes to express his deepest gratitude to Professor Albert H. Kritzer, Institute of International Commercial Law, Pace University School of Law, for his most valuable help in preparing this contribution, especially for the many helpful suggestions as to certain topics.

1.United Nations Convention on Contracts for the International Sale of Goods, United Nations Conference on Contracts for the International Sale of Goods, at 178, U.N. Doc. A/CONF.97/18, Annex I (1981) (opened for signature Apr. 11, 1980) [hereinafter CISG].

9. The Secretariat Commentary distinguishes between the five cited "receipt" articles and other Part III declarations which are governed by Article 27. See John Honnold, Documentary History of the Uniform Law for International Sales 417 n.2 (1989).

22. In the Hague Sales Law of 1964 (ULIS and ULFIS), predecessor of the CISG, no general provision regulating the effectiveness of communications among absent parties could be found. Compare Noussias, supra note 15, at 44-46. Proposals and drafts for the CISG were based on the idea that it would be appropriate to generalize the provision for the risk of transport with respect to notice of a defect of non-conformity in ULIS Article 39(3) and to make it applicable to all other communications. The German delegation's proposals to base effectiveness on receipt were rejected. For the different steps in the history, see id. at 50-58; Stern, supra note 15, §§ 390-407.

29. These conclusions apply even with respect to the revocation of a declaration of avoidance. Although the revocation "re-animates" the avoided contract, this effect occurs at the date of the conclusion of the contract and the revocation of avoidance; therefore, it has no bearing on the question as to when the contract again becomes effective.

30. Ulrich Huber, Art. 45: Rechtsbehelfe des Käufers; keine zusätzliche Frist, in Kommentar zum Einheitlichen UN-Kaufrecht 401, 412-13 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d. ed. 1995) [hereinafter Huber, Art. 45]. German law on buyer's claims in case of non-conformity provides that the buyer's demand of avoidance or price reduction is only a kind of offer to be accepted by the seller and that, until acceptance, the buyer can change his demand. Bürgerliches Gesetzbuch [BGB] § 465. In other words, the seller is protected against a change of mind of the buyer only after he has acted upon the buyer's demand by agreeing to the avoidance or price reduction; from then on the buyer is bound by his choice of remedies. As to the "transplantation" of this solution to the CISG, see Huber, Art. 45, supra, at 413. See also Huber Art. 50: Minderung, in Kommentar zum Einheitlichen UN-Kaufrecht 401, 412-13 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d. ed. 1995).

31.See also Honnold's commentary on the situation in which "a buyer notifies the seller of price-reduction . . . and later seeks to prove a more generous measure of loss available under Article 74." Honnold, Uniform Law, supra note 23, at 323-26. He states: "Perhaps the buyer should be held to have elected the price reduction formula of Article 50 only if this had been part of an agreement to settle damages or if the seller had changed its position relying on the seller's notification." Id. The need for concern over election of remedies between Article 50 and Article 74 should, of course, rarely arise when Article 50 has been first selected, because "where the buyer had declared the price reduced . . . the remedy scheme of the Convention should not preclude the buyer from obtaining [additional damages, for instance because of delay.]" 8 UNCITRAL Y.B. 42, U.N. Doc. A/CN.9/SER.S/1977 (1977). However, there can be instances in which the remedial amount for the same type of harm can differ between Article 50 and Article 74 because of the different calculation formulas contained in these articles. If the buyer has asked for and received damages from the seller, he should be prevented from reverting to price reduction and claiming more money by arguing that under the price reduction formula a higher portion of the purchase price had to be restituted to him than was claimed and paid as damages.

32.See Hager, Art. 65, supra note 16, at 564-65. However, a different commentator regards the specification as binding when "made," so that the buyer can no longer change his specification. See Victor Knapp, Article 65, in Commentary on the International Sales Law 477 (C.M. Bianca & M.J. Bonell eds., 1987). Unfortunately, Knapp does not explain exactly what he means by "made."